On Penn State, Litigation, Concussions and College Football

This November, it will be five years since Penn State plunged into the depths of college football scandal. Jerry Sandusky was arrested on November 5, 2011 and was charged by the Commonwealth with 48 counts of child sexual abuse and endangerment. I won't bother to bore you by reciting the lurid details and its subsequent impact on the University, its alumni base, and its student body. Indeed, much has been written, here and elsewhere, about those subjects. The facts of those stories bear little upon the topic of today's discussion.

What cannot be disputed is that Jerry Sandusky made Penn Staters well-versed in the legal process. After all, during the past five years, Penn State has been a party to or somehow engaged in:

1. The Sandusky criminal trial
2. The Sandusky criminal appeals
3. The criminal trials of former Penn State President Graham Spanier, former Senior Vice President of Finance and Business Gary Schultz, and former Director of Athletics Tim Curley
4. The employment lawsuit brought by Jay Paterno and Bill Kenney against the University
5. The whistleblower employment lawsuit brought by Mike McQueary against the University
6. Pennsylvania Senator Jake Corman's lawsuit against the NCAA regarding the allocation of the $60 million fine levied against the University by the NCAA
7. The Paterno family's lawsuit against the NCAA, the University, and investigator Louis Freeh for various defamation-type claims
8. The conflict between Sandusky and the Commonwealth regarding the potential rescinding of his pension
9. The pre-litigation negotiations between alleged Sandusky victims and the University, which were conducted by Kenneth Feinberg
10. The lawsuit between the University's insurance carriers and the University, in which the University sought a determination that its carriers would provide coverage for the tens of millions of dollars in settlement to alleged Sandusky victims

Many of these actions remain pending in one capacity or another. The point is, Penn State and its Athletic Department have been embroiled in high-profile litigation with potentially significant financial exposure and reputation issues for multiple years.

On May 17, 2016, we added another to the list. On that date, Penn State was named as a defendant, alongside the Big Ten Conference and the NCAA, by three former Penn State players - Robert Samuels, James Boyd, and Eric Ravotti. In the initial complaint, the three men essentially alleged that the failure of the defendants to create protocols to handle concussions and provide appropriate care for recovery have led to substantially reduced cognitive functioning, including memory loss and mood swings. Former players from Auburn, Georgia, Utah and Vanderbilt filed nearly identical suits against the NCAA and their respective conferences (and some against their respective schools) on the same day.

Outside of the Penn State legal saga set forth above and the absurdity that is the litigation and appeal concerning the Tom Brady "Deflategate" scandal, litigation relating to player safety and repetitive brain trauma are the most high-profile in sports. In April 2016, the Third Circuit Court of Appeals (interestingly, the federal appellate court for Pennsylvania) upheld a $1 billion settlement between the NFL and thousands of former players who claim that repeated blows to the head while playing football led to lifelong injuries consistent with Chronic Traumatic Encephalopthy. The players argued that the NFL had knowledge for years concerning the potentially harmful effects of repeated concussive head trauma, but failed to provide them with adequate warning. The lawsuit was so large that Hollywood managed to make a major motion picture about it, starring Will Smith.

Boyd and Ravotti have already requested their names be removed as plaintiffs. Depending on who you ask, they either did not realize or were not informed that Penn State itself would be a party to the suit. Despite the awkwardness that inevitably comes with suing a place you love, Samuels remains the named plaintiff in the class action. The 46-year old former defensive back, who played for the Nittany Lions between 1988 and 1991, acknowledged his kinship with his teammates and classmates, as well as the University, but also notes:

He said training staff at Penn State twice diagnosed him with a concussion during his time at the school but the school never kept him from playing.

“One of the things that was prevalent during that time was for them to say you had your bell rung and kind of send you back in,” Samuels said. “During my senior year I started to notice that I was having trouble sleeping. I started to notice that I was having problems with concentration when it came time for my classes and things like that. Just had a lot of fatigue, a lot of headaches, just made it very difficult to remain a student-athlete at the time.”

Samuels said he pursued a professional career in the Canadian Football League and the Arena League but was done with the game after about two years.

He said his wife worried about his odd behavior and mood swings and she encouraged him to try to figure out what was wrong. He said he has seen doctors and but none has diagnosed that head trauma led to his symptoms.

Awareness of CTE and the impact of traumatic brain injuries has heightened dramatically in recent years, which has led to a slew of changes in the game's rules. All levels have football have banned helmet-to-helmet hits, including fines, game expulsions, and potential suspension for offenders. In 2012, the NCAA moved kickoffs to the 35-yard line in an attempt to increase touchbacks and reduce kick returns, which feature players on each side running at each other at full speed, unabated for many yards at a time. That same year, the NFL considered banning kickoffs all together. This year, Pop Warner became the first major organized league to follow through on that thought.

Of course, these rule changes are intended to deal with the "big hit" - the kind of play that ESPN's "Jacked Up!" segment used to feature on a regular basis. The kind of play that James Boyd, Robert Samuels, and Eric Ravotti would have made in order to make the highlight reel. What remains unaccounted for, though, are the repeated sub-concussive blows that may be just as dangerous. Those "continuous collisions" put offensive and defensive lineman at elevated risk for CTE.

Penn State is not the only institution facing these issues. What rule changes will come next? The end of the three-point stance? Weight limits on players who have become too big and too fast to collide with each other? No matter the outcome, Robert Samuels has managed to ensure that his alma mater is at the forefront of any discussion concerning player safety and the future of college football.